IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 147 OF 1993

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REASONS FOR DECISION

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1. These are my reasons for allowing the appeal of the appellant in this case.

2. The appellant, who was represented by a solicitor, pleaded guilty before a magistrate to three charges as follows:-

(A) Hawking without a licence contrary to Section 83B of the Public Health and Municipal Services Ordinance, Cap. 132.

(B) Hawking by means of a mobile van without the consent of the authority, contrary to By-law 6(3) of the Regional Council By‑laws, made under the Public Health and Municipal Services Ordinance, Cap. 132.

(c) Selling restricted food without the permission of the Council, contrary to By-laws 30(1)(a) and 36(1)(a) of the Food Business (Urban Council) By-laws, Cap. 132.

3. It would appear from the notes of the magistrate that the prosecutor did not state in court the facts upon which the prosecution relied to justify the charges. She simply said “I submit into evidence four photogaphs, one taken at the time of the offence and three taken of the van involved”. It was apparent from the text of the three charges taken together that the appellant was alleged to have sold pork, which is a restricted food, without the permission in writing of the Urban Council to hawk and that he was at the time hawking by means of a mobile van without the consent of the appropriate authority. The photographs showed the vehicle which was alleged to be the mobile van.

4. The story put forward by the appellant’s solicitor to the Special Magistrate was that the appellant had been selling pork from the back of a parked vehicle which did not belong to him. During the proceedings, the prosecutor and the solicitor for the appellant apparently referred to the vehicle as a van.

5. At the appeal, the appellant, who was then unrepresented, said that he had pointed out to his solicitor that the vehicle was a lorry, not a van, but that she had told him that there was no difference. It is not necessary for me to decide what was said between them but there is nothing in the magistrate’s notes to suggest that the question whether the vehicle was a van was raised by anybody.

6. The question was, however, raised before this court by the appellant in person.

7. The first offence listed above, being contrary to Section 83B(1) of Cap. 132, is defined by Section 83 as a “hawker offence”. It is provided by Section 86A that where a person is convicted of a hawker offence in respect of any equipment seized under Section 86(1),

“the court shall, in addition to any other penalty -

(a) order the forfeiture of the equipment or commodity.”

8. Here it was the prosecution’s case that the vehicle was equipment and that forfeiture was mandatory. The magistrate so found.

9. The word “equipment” is defined in Section 83 as follows:-

“Equipment includes any stall, table, stool, chair, utensil, container, bin, or other furniture or paraphernalia used in connection with hawking; but does not include any commodity sold, or offered or exposed for sale, by a hawker.”

“Stall” is defined in the same section as follows:-

“ ‘Stall’ includes any erection, structure, box, card, barrel, trolley, bicycle, tricycle or van.”

10. The magistrate ordered the forfeiture of the vehicle on the basis that it was a van, which fell within the definition of “stall” which fell within the definition of “equipment”. The difficulty is that the photographs which were tendered to the magistrate plainly depict a lorry.

11. A van is defined in the Shorter Oxford English Dictionary as “a covered vehicle chiefly employed for the conveyance of goods usually resembling a large wooden box with arched roof and opening from behind, but varying in size and form.”.

12. A lorry is a different type of vehicle. It is defined in the Shorter Oxford English Dictionary as “a long flat wagon without sides or with low sides, running on four low wheels”. That description fits the vehicle shown in the photographs. The version of the facts given by the prosecution was inconsistent with charge B. Though the plea to charge B was, on the face of it, an unequivocal plea of guilty, the Special Magistrate should not have accepted it and should have addressed his mind to the question whether the vehicle was in fact a van. See The Queen v. Li Tung Hing, Magistracy Criminal Appeal No. 618 of 1992.

13. In the circumstances, I gave the appellant leave to appeal out of time against his conviction on charge B and against the order made by the Special Magistrate for the forfeiture of the vehicle.

14. The effect of Section 86A is draconian. If the legislature had intended that a vehicle of any description must be forfeited if a hawker was caught selling from it, it could have said so. Had it done so, any innocent person parking a vehicle of any size or description in the street would risk having it confiscated if any hawker chose to put his wares on any part of it. This could lead to great injustice because there is nothing to prevent a hawker from climbing upon an open parked vehicle such as a lorry and using it as a temporary stall without the knowledge or consent of the owner. The situation is different with a van, where the goods compartment is fully enclosed by the body of the vehicle. By including certain specific types of vehicle in the definition of equipment subject to mandatory forfeiture, the legislature may be taken to have excluded other types.

15. I have taken into account the provisions of Section 19 of the Interpretation and General Clauses Ordinance which provides that an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance as to its true intent, meaning and spirit. Bearing that in mind, I was satisfied that the vehicle in question was not an article which fell within the definition of “equipment” contained in Section 83. It was not liable to mandatory disqualification.

16. I ordered, accordingly, that the conviction on charge B and the forfeiture order be set aside and the lorry returned to its owner.